Citation NR: 9727531
Decision Date: 08/07/97 Archive Date: 08/14/97
DOCKET NO. 94-38 663 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for pes planus.
2. Entitlement to service connection for a bilateral ankle
disorder.
3. Entitlement to service connection for asthma.
ATTORNEY FOR THE BOARD
Thomas A. Yeager, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1986 to
July 1992.
This appeal arises from a February 1993 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Cleveland, Ohio, which denied the veteran’s claims of
entitlement to service connection for, inter alia, pes
planus, a bilateral ankle disorder and asthma. In April
1996, the Board of Veteran’s Appeals (Board or BVA) reviewed
the claim on appeal, confirming denials of service connection
for certain claimed conditions, but remanding the issues
noted above for additional development. After completion of
the actions required by the remand, the RO confirmed its
prior denial of service connection for pes planus, a
bilateral ankle disorder and asthma. The veteran has not
withdrawn her appeal of these determinations and the case has
been returned to the Board for further review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO erred in denying the
benefits sought on appeal. She maintains, in essence, that
she presently suffers from pes planus, a bilateral ankle
disorder and asthma, all of which are disabling and
etiologically related to her period of active military
service. Accordingly, favorable determinations are
requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that her claims of
entitlement to service connection for pes planus, a bilateral
ankle disorder and asthma are well grounded.
FINDINGS OF FACT
1. There is no competent evidence of a current bilateral
ankle disorder or asthma.
2. There is no competent evidence of a nexus between the
veteran’s currently diagnosed pes planus and her active
military service.
CONCLUSION OF LAW
The veterans claims of entitlement to service connection for
pes planus, a bilateral ankle disorder and asthma are not
well grounded. 38 U.S.C.A. § 5107(a) (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran has claimed entitlement to service connection for
pes planus, a bilateral ankle disorder and asthma. In making
a claim for service connection, however, the veteran has the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-
grounded claim is “a plausible claim, one which is
meritorious on its own or capable of substantiation.” See
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
There are three elements the veteran must provide for her
claim of service connection to be well grounded. First,
there must be competent evidence of a current disability
established by medical diagnosis. See Brammer v. Derwinski,
3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet.App.
141, 144 (1992). Second, there must be evidence of
incurrence or aggravation of a disease or injury in service,
as provided by either lay or medical evidence, as the
situation dictates. See Layno v. Brown, 6 Vet.App. 465, 469
(1994); Cartwright v. Derwinski, 2 Vet.App. 24, 25 (1991).
Lastly, there must be a nexus, or link, between the in-
service disease or injury and the current disability, as
established by competent medical evidence. See Lathan v.
Brown, 7 Vet.App. 359, 365 (1995); Grottveit v. Brown, 5
Vet.App. 91, 93 (1993). See also Caluza v. Brown, 7 Vet.App.
498, 506 (1995).
It is the veteran’s contention that her currently diagnosed
pes planus, a claimed bilateral ankle disorder and her
claimed asthma all originated while on active duty. In
support of this assertion, the veteran noted that during
active service she had ankle injuries in Germany and Texas,
thereafter had continuous problems with her ankles, and
received orthopedic supports issued to her. In addition, the
veteran argues that she was diagnosed with exercise-induced
bronchospasms while in service and was placed on four
separate medications, which compels the conclusion that her
claimed asthma originated during active service.
The veteran’s service medical records indicate that she was
diagnosed as having right foot pain and plantar fasciitis and
soft tissue bruising of the right foot in August 1986. In
July 1990, she was treated for a mild sprain of the left
ankle and in August 1990 was treated for a mild ligament
strain of the lateral portion of the left foot. In February
1997, subsequent to the Board’s remand, the RO received
additional service medical records, which included the
veteran’s June 1992 separation physical. The report of
examination and physician’s summary of data pertinent to her
medical history indicate a diagnosis of asthma with a 2-1/2
year history, treated with medications, without
complications. The examining physician noted that the
veteran had a three-year history of unstable/painful ankles,
which had been treated with foot inserts, medication and
profiles without complication, and that she was then
receiving no treatment for the condition. His clinical
evaluation of
her feet was that they were normal.
At a VA examination of October 1992, the veteran complained
of shortness of breath when exercising excessively and
problems with both ankles. The examining physician diagnosed
stress-type asthma and bilateral pes planus, but failed to
address the veteran’s claimed bilateral ankle disorder. He
reported flattening of the arches and pronation of both feet,
with unimpaired range of motion and a normal gait and
carriage. In addition, the examiner made no findings in
support of his diagnosis of asthma and did not note whether
the pes planus he diagnosed was congenital or acquired and,
if acquired, whether it was related to the veteran’s active
military service.
The April 1996 BVA Remand required that the veteran be
afforded further VA orthopedic and respiratory examinations
to determine the nature, extent of severity and etiology of
any bilateral ankle disorder or respiratory disorder claimed
as asthma which might be present. The examiner was also
directed to note whether the previously diagnosed pes planus
was congenital or acquired. The veteran was scheduled for
and notified of an examination at the VA Medical Center
(VAMC) in Cincinnati, Ohio, in December 1996. However, she
failed to appear for the scheduled examination, and did not
respond to an April 1997 letter from the RO requesting that
she advise the VA of any reason for her failure to report and
whether she would now be willing to report. The April 1997
letter was initially sent in February 1997 to the veteran’s
Middletown, Ohio address of record, but was returned by the
U.S. Postal Service in March 1997 with an indication that the
veteran had moved. It was then resent, in April, to the
forwarding address in Hamilton, Ohio, shown by the U.S.
Postal Service. The letter was not returned and there is no
record of any other plausible address for the veteran.
“In the normal course of events, it is the burden of the
veteran to keep the VA apprised of his whereabouts. If he
does not do so, there is no burden on the part of the VA to
turn up heaven and earth to find him. It is only where a
file discloses other possible and plausible addresses that an
attempt should be made to locate him at the alternate known
address before finding abandonment of a previously
adjudicated benefit.” Hyson v. Brown, 5 Vet.App. 262, 265
(1993). In this instance, the RO did precisely as required
by the circumstances. After the last reported address of the
veteran was determined to be inaccurate, the RO attempted to
contact her at the forwarding address shown by the U.S.
Postal Service. Without additional information plausibly
suggesting her whereabouts, no additional action by the RO is
required, and the case must be decided using the evidence
currently in the file. As the United States Court of
Veterans Appeals has noted, “[t]he duty to assist is not
always a one-way street. If a veteran wishes help, he cannot
passively wait for it in those circumstances where he may or
should have information that is essential in obtaining the
putative evidence.” Wood v. Derwinski, 1 Vet.App. 190, 193
(1991). See also, Zarycki v. Brown, 6 Vet.App. 91, 100
(1993).
After reviewing the evidence, in view of the veteran’s
failure to report for examination of her current condition,
the Board is compelled to conclude that there is no competent
(i.e., medical) evidence suggesting that the veteran
presently suffers from either a bilateral ankle condition or
a respiratory condition claimed as asthma. Nor is there any
competent evidence which establishes a nexus between the pes
planus diagnosed during the October 1992 VA medical
examination and her military service. The veteran has
asserted that the conditions do presently exist, are
disabling, and that they are etiologically linked to her
period of active duty. However, the Board notes that the
Court has held that lay testimony is not competent to prove a
matter requiring medical expertise. See Layno, 6 Vet.App. at
469; Fluker v. Brown, 5 Vet.App. 296, 299 (1993); Moray v.
Brown, 5 Vet.App. 211, 214 (1993); Cox v. Brown, 5 Vet.App.
93, 95 (1993); Grottveit, 5 Vet.App. at 92-93; Clarkson v.
Brown, 4 Vet.App. 565, 567 (1993). It is the province of
trained health care professionals to enter conclusions which
require medical opinions as to causation, Jones v. Brown, 7
Vet.App. 134, 137 (1994), and, since she has no medical
expertise, the lay opinion of the veteran does not provide a
basis upon which to make any finding as to the existence,
origin or development of her condition. See Espiritu v.
Derwinski, 2 Vet.App. 492, 494-5 (1992).
The Board recognizes that this appeal is being disposed of in
a manner that differs from that used by the RO. The RO
denied the veteran’s claim on the merits, while the Board has
concluded that the claim is not well grounded. However, the
Court has held that “when an RO does not specifically address
the question whether a claim is well grounded but rather, as
here, proceeds to adjudication on the merits, there is no
prejudice to the veteran solely from the omission of the
well-grounded analysis.” Meyer v. Brown, 9 Vet.App. 425, 432
(1996).
ORDER
Evidence of well grounded claims not having been submitted,
the veteran’s claims of entitlement to service connection for
pes planus, a bilateral ankle disorder and asthma are denied.
BRUCE KANNEE
Member, Board of Veterans’ Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
- 2 -